LTC 297-2017 Use of City buildings for political campaign activitiesMIAMI BEACH
OFFICE OF THE CITY ATTORNEY LETTER TO COMMISSION
LTC No. # 297-2017
TO: Mayor Philip Levine and Members of the City Commission
FROM: Raul J. Aguila, City Attorney 74 �—
CC:
Jimmy L. Morales, City Manager
Rafael E. Granado, City Clerk
DATE: June 5, 2017
SUBJECT: Use of City buildings for political campaign activities
I am writing to supplement the legal opinion that I provided in Letter to Commission No. 223-
2017, dated May 3, 2017, regarding the use of City buildings for political campaign activities.
(See attached Exhibit "A".)
Prohibition on the solicitation or knowing acceptance of political contributions
in City buildings
Pursuant to Florida campaign finance law, "[n]o person shall make and no person shall
solicit or knowingly accept any political contribution in a building owned by a governmental
entity." Section 106.15(4), Florida Statutes. For purposes of this Statute, "accept" means "to
receive a contribution by personal hand delivery from a contributor or the contributor's
agent." This prohibition applies to all City -owned buildings, including City buildings managed
by private entities (e.g., the Jackie Gleason Theater, Miami Beach Convention Center,
Miami Beach Botanical Garden, and the North Beach Oceanfront Center (managed by
UNIDAD)).
The Statute does not apply when a City building or any portion thereof is rented for the
specific purpose of holding a campaign fundraiser. Any other political campaign activity may
occur in a City building, provided that such activity is not otherwise prohibited by law.
II. Public access (including access by candidates) to City buildings
At its regular meeting on May 17, 2017, the City Commission adopted a motion re -affirming
the City's policy that all City -owned buildings (whether managed by the City or by a private
entity) that are intended to be open to the public shall also be open to candidates for office,
including during public events.' Therefore, City staff and private entities that manage City
buildings should not prohibit candidates for office from entering those facilities and
conducting campaign activities, unless any such activities are prohibited by Florida law, as
described in Section I above.
' The After Action summary of the City Commission's May 17, 2017 discussion, listed as Agenda Item
RK, is attached as Exhibit "B" hereto.
June 5, 2017
Use of City buildings for political campaign activities (amended)
Page 2 of 2
However, a candidate may be excluded from a City building if the building (or a portion
thereof) has been rented or leased to a third party for a private event. In such instance, the
City building (or portion thereof) would not be "open to the public."
Additionally, candidates for office may also conduct campaign activities in privately owned
facilities when such a facility is rented by the City to host an event that is open to the public.
OFFICE OF THE CITY ATTORNEY
LTC No. # 223-2017
LETTER TO COMMISSION
TO: Mayor Philip Levine and Members of the Cit Commission
FROM: Raul J. Aguila, City Attorne -Ili
V.
CC: Jimmy L. Morales, City Manager D
Rafael E. Granado, City Clerk
DATE: May 3, 2017
SUBJECT: Use of City buildings for political campaign activities
I have been asked to provide a legal opinion on the use of City buildings for political
campaign activities.
Pursuant to Florida campaign finance law, "[n]o person shall make and no person shall
solicit or knowingly accept any political contribution in a building owned by a governmental
entity." Section 106.15(4), Florida Statutes. For purposes of this statute, "accept" means "to
receive a contribution by personal hand delivery from a contributor or the contributor's
agent." The statute does not apply when the government-owned building or any portion
thereof is rented for the specific purpose of holding a campaign fundraiser.
Any other political campaign activity may occur in a City building, provided that such activity
is not otherwise prohibited by law.'
Please feel free to contact me if you have any questions.
' Attached please find the latest version of the City Manager's policy regarding City employee
participation in elections.
Exhibit "A"
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
Jimmy L. Morales, City Manager
Tel: 305-673.7010 Fax: 305-673.7782
MEMORANDUM
TO: All City Employees under my supervision
FROM: Jimmy L. Morales, City Manager
DATE: March 5, 2015
SUBJECT: November 2015, Miami Beach Elections
In November, our citizens will elect a Mayor and three Commissioners. As the City Manager, my professional
code of ethics, as delineated by the International City Management Association (ICMA), requires me not to
participate in elections, specifically those local elections regarding my legislative body.
The reasoning behind the ethical code is that by engaging in electoral activities, I could compromise my ability
to perform my job as City Manager. By supporting, assisting or endorsing a candidate, I could create the
perception that I also support his/her issues or positions. Also, since our electoral process is a win/lose situation
that sometimes generates long lasting opinions and emotions, supporting one candidate over another could
alienate a segment of the population, thereby affecting my ability to be viewed as what I am; professional and
objective on issues.
The senior management. City staff is also bound to abide by this particular ethics code for the same reasons that
affect me as the City Manager.
Beyond the managerial staff, I expect all City employees under my supervision to be aware of, and to the extent
possible, follow the ethical code of not becoming involved in local elections, The more employees who abide by
this particular ethics code, the higher the level of confidence the public will have in us as an entity.
Additionally, Section 104.31 (2) of the Florida Statutes entitled "Political Activities of State, County and Municipal
Officers and Employees" states, "An employee of the State or any political subdivision may not participate in any
political campaign for an elective office while on duty."
While everyone is free to participate in the political process and to exercise his or her First Amendment rights in
political campaigns, no City employee may do so while on City time or as part of City employment. That is,
employees may not campaign for, visit or aid candidates for elective office for political purposes during regular
working hours. Further, employees may not use any City facilities, supplies or equipment, including City
computers, telephones or vehicles, for political purposes.
Department/Division Directors are asked to post this memorandum on departmental bulletin boards and/or
distribute copies so all employees are made aware of their rights and responsibility not to get involved in
controversies or potential violations of the previously mentioned Florida Statute.
If you have any questions regarding this policy or need additional information, please do not hesitate to contact
my office.
J LM/KGB/SCT
We are commilied to providing excellent public service and safety to oil who live, work, and play in our vibronf, tropical, historic community.
After Action May 17, 2017 City of Miami Beach
Commission and Presentation and Awards Meeting
4:19:00 p.m.
ADDENDUM MATERIAL 3
R9 AL DISCUSS CLARIFYING ALLOWABLE / PERMITTED POLITICAL CAMPAIGN ACTIVITY IN CITY
BUILDINGS.
Commissioner Joy Malakoff
ACTION: Discussion held. Motions made by Commissioner Malakoff to reaffirm and restate the
City's policy that ensures all public buildings, during public events, are open to candidates and
elected officials. Seconded by Commissioner Arriola. Voice vote: 7-0. Office of the City Attorney
to handle.
Commissioner Malakoff stated that she was disturbed when she was at Rebecca Towers at a
Mother's Day event for senior citizens and a Commissioner asked Rebecca Towers personnel not
to allow another candidate for office to campaign and talk to people. We have already asked the
City Attorney to put forth the use of City buildings for political campaign activities, which he did.
Commissioner Malakoff asked the City Attorney and the City Manager on the record to describe
this; what is allowed for candidates for office to do or not to do?
Raul J. Aguila, City Attorney, stated that he had issued an LTC a few weeks ago with regard to
what was legal and what was not legal with regard to political campaigning in government owned
buildings. (See LTC # 223-2017) Under Florida Statutes, Chapter 106, the only thing prohibited is
that a candidate cannot knowingly solicit campaign contributions in government owned building,
unless the candidate rents the entire facility for campaign fundraiser. There is no per say prohibition
that a candidate cannot go to a City -owned facility, which is open to the public, and campaign,
introduce themselves, hand out literature, etc. The only policy directive that the City Manager and
the City Attorney have is one they issue annually with regard to City employees engaging in political
activity. It is a person's First Amendment right to engage in political activity, but an employee cannot
do so during working hours, nor can anyone expend City resources or City funds. The bottom line is
that there is no policy or legal restriction, which would prohibit a candidate from going to a public
facility to campaign. City Attorney Aguila does want to point out that Rebecca Towers and Council
Towers are owned by the Housing Authority, and are not City -owned. As far as City buildings and
parks go, the Statute would apply and would only prohibit the solicitation of contributions.
Mayor Levine asked hypothetically, if he paid for a room and does not want any other elected
officials to come, could this be done. City Attorney Aguila responded "yes," a candidate could rent
out our City facilities, such as the Botanical Garden Center and the Convention Center. Reasonable
non-discrimination policy applies, but political candidates are not a protected class under Federal
Law. A candidate can conceivably rent out a City facility like the Convention Center and do a by
invitation only event.
Commissioner Malakoff recounted that back in 2013 when she was campaigning for office, she
remembers going to Rebecca Towers and there was absolutely no problem. Her opponent was
Mayor Matti Bower, and even if she did not like it, she certainly did not go to security and say that
Joy Malakoff has to leave because she is a candidate and not allowed to be there. That has to be
clear, because it is very embarrassing for the other the candidate for Mayor being asked to leave.
Mayor Levine asked if they want to make a policy statement.
City Attorney Aguila stated that for many of our public facilities that are managed by private parties
i.e. the UNIDAD building, the Garden Center, the Convention Center, the manager's in those
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Exhibit "B"
After Action May 17, 2017 City of Miami Beach
Commission and Presentation and Awards Meeting
buildings should know that those facilities are open to the public and are not being rented for a
private invitation only event. They should not prohibit candidates from being able to enter those
facilities and introducing themselves or campaigning.
Commissioner Malakoff said the same thing is true with UNIDAD, as she understands that a
candidate for Mayor was asked to leave by the manager because his opponent a Commissioner
said that it is by private invitation. Although, on the Parks and Recreation events UNIDAD's
Mother's Day Party was listed as one of the events. The same is true with UNIDAD's Senior's
Spring Fling Party in April; it was also listed in our own Miami Beach Parks and Recreation event
schedule.
Commissioner Grieco stated that if Commissioner Malakoff had a concern with something that
UNIDAD did or Rebecca Towers did, then she should take it up with them. Rebecca Towers is not a
City -owned building, it is not run by the City, so Commissioner Malakoff should address it with the
folks that manage Rebecca Towers and the same with UNIDAD, but Commissioner Grieco
requested that he not be brought up in connection with this.
Commissioner Arriola asked Commissioner Grieco if he is saying that he had nothing to do with
this.
Mayor Levine intervened and said that we are not going to get political here. Mayor Levine thinks
we should reaffirm and restate the City's policy that ensures that all public buildings are open to
candidates and elected officials, and that we all agree to that. Moved by Commissioner Malakoff;
seconded by Commissioner Arriola.
City Manager Morales added that there are times when a City Department will rent a private place
for a public event, such as the senior events at Jungle Island, while the Convention Center is under
construction; presumably, those City events at a private location are also open to all candidates.
ADDENDUM MATERIAL 4 (HANDOUT)
R9 AM DISCUSSION REGARDING ILLEGAL KITE SURFING ON 24TH STREET.
Vice -Mayor Kristen Rosen Gonzalez
ACTION: Item deferred to June 7, 2017. Lilia Cardillo to place on the Commission Agenda, if
received.
Handouts or Reference Materials:
1. Email from Elizabeth Wheaton dated May 16, 2017 RE: Does the Mayor approve the following
Addendums? Item approved.
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